TPM and the Public Domain (#c32)

Accroding to The Appropriation Art Coalition applying TPM to public domain content effectively removes that content from the public domain. Is that really true? I don’t think so, and here’s why.

From their post on this subject:

In Bill C-32, there is no ‘expiry date’ on a TPM. A TPM (or digital lock) can, conceivably last forever, this means that works will remain inaccessible even after they enter the Public Domain. Furthermore a digital lock can be applied to a work already in the Public Domain. This effectively removes the work from the Public Domain. This means that the legislation in Bill C32 opens up the potential to decimate the Public Domain

But let’s see what bill C32 has to say about this:

“technological protection measure”
« mesure technique de protection »

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

Now, as the copyright holder is either dead or has waived his/her rights, what was previously a TPM – or could have been one, no longer falls within the definition and can now legally be removed.

About rlc

Software Analyst in embedded systems and C++, C and VHDL developer, I specialize in security, communications protocols and time synchronization, and am interested in concurrency, generic meta-programming and functional programming and their practical applications.
I take a pragmatic approach to project management, focusing on the management of risk and scope.
I have over two decades of experience as a software professional and a background in science.

9 Responses to TPM and the Public Domain (#c32)

Let’s see. Let’s take DVDs. DVDs are generally “protected” by a technology called CSS. The ordinary course of this technology is to (a) control access and (b) restrict the doing of the mentioned acts for copyrighted content. Does the ordinary course of this technology changes if a few DVDs contain public-domain content? I’d tend to think it does not, that the public-domain content is the unordinary course for that technology. CSS is, and stays, a TPM.

It certainly isn’t clear-cut, but there’s certainly a risk the courts interprets it that way. If the intent of the law is to allow circumventing TPMs to access a public-domain work, it should be written more explicitly. Allowing TPM circumvention when it’s for a legal use would take care of that.

Who said anything about “ordinary”, “generally” or “primary”? TPM is only covered by copyright law if it is used to protect something that falls under copyright law – i.e. is copyrighted. I’m not the only one saying this, by the way: take a look at this:

Concerns about the impact of anti-circumvention legislation on public access and use of public domain materials is frequently addressed by arguing that the legislation only protects works that are subject to copyright. Since public domain materials fall outside that definition, works such as old public domain films that are enclosed with DRM could be lawfully circumvented.

If course, if you mix public domain content with copyrighted content, the result is copyrighted (which is also argued on that site), but content on which copyright expires comes back into the public domain, which is what I was arguing (the point made by the Appropriation Artists Coalition was that due to TPM, copyright would not expire – that is not true).

I agree with Ronald. Simply put, any “work” that falls into the public domain is, by definition, no longer a copyrighted work protected by the Copyright Act. Also, as Ronald points out, once a work falls into the public domain, there is no longer a “copyright owner” to can authorize the application of a TPM. Consequently, once a work falls into the public domain, the prohibition on circumventing TPMs would no longer apply.

But if you read the rest of the bill you’ll see that the TPM remover you used on your public domain DVD is not allowed to be distributed, sold, licensed out or used! And it gets generic, the copyright owner part doesn’t matter once the device can used to circumvent a class of TPMs.

What can you do with a TPM breaker? Probably just keep it:
* No services to break TPM
* No manufacture
* No import
* No distribution
* No sale
* No rental
* No lend/provide

And you’re not allowed to use it because of the definition I’ll give you after this big block of crappy legislation:

41.1 (1) No person shall

(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technolog- ical protection measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

Ok now lets address it, can you use a TPM you have?

First lets look at the definition again:

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; OR

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

So you see that big OR, so just because TPM is applied when it isn’t authorized, doesn’t mean it is ok. OR mentions section 3, 15, 18. Section 3 tells us the acts related to copyright works that the author can do:

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a) to produce, reproduce, perform or publish any translation of the work,
(b) in the case of a dramatic work, to convert it into a novel or other non-dramatic work,
(c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a
dramatic work, by way of performance in public or otherwise, (d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, (e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public

by telecommunication, (g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan, (h) in the case of a computer program that can be reproduced in the ordinary course of its use, other
than by a reproduction during its execution in conjunction with a machine, device or computer, to rent
out the computer program,and
(i) in the case of a musical work, to rent out a sound recording in which the work is embodied, and to authorize any such acts., and (j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership
of the tangible object, as long as that ownership has never previously been transferred in or outside
Canada with the authorization of the copyright owner,
Simultaneous fixing (1.1) A work that is communicated in the manner described in paragraph (1)(f) is fixed even if it is fixed simultaneously with its communication.

That’s a lot of acts, but notice this is just a list of things you can do, and in reference to C-32, it is a list of things that if you restrict them or try to, you’re a TPM.

So why does this matter? Because given the OR clause they’ll say, sure you had ownership of the copyrighted work, or NO ONE had ownership of the copyrighted work, but you broke a TPM because TPM was meant to protect these things, regardless if the work was copyrighted or not because it meets clause (b) all the way up there where I quoted it.

So in conclusion I do not think it is clear you are allowed to break the TPM of a public domain work because you’re not allowed to break TPM. The act says no circumvention, just because there is no authorized copyright holder for the individual work doesn’t mean the TPM used to protect the work is not TPM.

Ok so TPM is TPM and circumvention is not allowed except for those exceptions we talked about before.

“That’s a lot of acts, but notice this is just a list of things you can do, and in reference to C-32, it is a list of things that if you restrict them or try to, you’re a TPM”

That’s true, BUT all of the exclusive rights conferred by section 3 EXPIRE when the copyright in the work expires and the work passes into the public domain (See section 6 of the Act). Once the work is in the public domain, those rights are no longer operable and the copyright owner cannot restrain anyone else from performing those acts. Paragraph (b) of the defintion of TPMs specifically references those rights and must be read and interpreted in conjunction with those rights, so when those rights expire, so does the prohibition on circumventing TPMs defined under paragprah (b).

But the TPM breaker is still illegal to purchase, sell, distribute, and in many cases use.

So what’s so great about being able to use illegal tools?

Again I don’t think TPM suddenly doesn’t become TPM just because you own the copyright or because it is public domain.

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

It doesn’t specify that the work still has be copyrighted, it is referring to the acts you can execute on copyrighted material.
“the doing of any act” so an action described in 3, 15, or 18.

I’m pretty sure just because you protected something public domain with TPM doesn’t mean that the TPM is magically not TPM anymore.

I think part (b) is meant to say that a TPM product does one of these things: it restricts one of these actions.

* Part (b) doesn’t say a TPM has to protect copyrighted material, part (b) is about what a TPM is.
* Then 41.1 says no personal shall circumvent a technological protection measure …
* Therefore circumventing TPM is circumventing TPM.

TonyClement_MP tweeted it is legal to own but illegal to use or distribute:

Cant manuf, sell or use. But you CAN posess! RT @PSchammy Does #C32 make it illegal to posess/make software that ‘can’ break a lock?

So that’s his purpose, the bill might say something slightly different because he doesn’t seem to be much of an expert on it.

What’s the point of a lock breaker you can’t make, you can’t distribute, you can’t sell, you can’t use but you can have.

“But the TPM breaker is still illegal to purchase, sell, distribute, and in many cases use.”

It’s not prohibited to purchase or possess a circumvention device, and, as discussed, in the case of public domain works, it would not be prohibited from using the device.

“[Paragraph (b) of the definition of TPMs] doesn’t specify that the work still has be copyrighted, it is referring to the acts you can execute on copyrighted material.”

Even if that were true (and I don’t agree), for the purpose of circumvention it’s actually a moot point.

The bill classifies TPM distnct categories of TPMs: those described under paragraph (a) of the defintion (commonly referred to as “access controls”, as they control access to a work), and those described under paragraph (b) of the defintion (commonly referred to as “copy controls”, as they limit copying of a work).

Now, section 41.1 says:

“(1) No person shall … (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41”

Note that the section only prohibits circumventing TPMs as described in paragraph (a) of the definition (access controls), and DOES NOT prohibit circumventing TPMs as described in paragraph (b) of the definition (copy controls). Consequently, there’s no legal prohibition on circumventing copy controls, whether the work is in the public domain or not.

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